Common use of Satisfaction of Indemnification Obligations Clause in Contracts

Satisfaction of Indemnification Obligations. (a) Upon the final determination of the Indemnifying Party’s obligation to indemnify any Indemnified Party for any Losses pursuant to this Article VII, the Indemnifying Party shall be required, at the sole and exclusive election of Spotify (if TME is the Indemnifying Party) or TME (if Spotify is the Indemnifying Party), to either (i) make a cash payment to the Indemnified Party (or another Person designated by Spotify or TME, as applicable, in its sole and absolute discretion) by wire transfer of immediately available funds or (ii)(A) if TME is the Indemnifying Party, cause TME Hong Kong to sell, transfer, assign, convey and deliver to Spotify (or another Person designated by Spotify in its sole and absolute discretion) all or a portion of any Spotify Securities owned beneficially or of record by the Indemnifying Party or its controlled Affiliates in exchange and as consideration for the satisfaction of TME’s indemnification obligation for such Losses and (B) if Spotify is the Indemnifying Party, cause Spotify AB to sell, transfer, assign, convey and deliver to TME (or another Person designated by TME in its sole and absolute discretion) all or a portion of any TME Securities owned beneficially or of record by the Indemnifying Party or its controlled Affiliates in exchange and as consideration for the satisfaction of Spotify’s indemnification obligation for such Losses (it being understood that the Indemnified Party shall have the right to elect to have its Losses indemnified by a cash payment, the sale, transfer, assignment, conveyance and delivery of Spotify Securities or TME Securities, as applicable, or a combination thereof, in each case, to satisfy the aggregate amount of Losses that the Indemnified Party is entitled to be indemnified for hereunder). (b) For purposes of this Section 7.05, the number of Spotify Securities or TME Securities, as applicable, to be sold, transferred, assigned, conveyed and delivered to Spotify and TME, respectively, shall be calculated by dividing (i) the amount of the Indemnified Party’s Losses for which it is finally determined the Indemnified Party is entitled to indemnification under Section 7.02 and with respect to which the Indemnified Party has elected to repurchase Spotify Securities or TME Securities, as applicable, from the Indemnifying Party, by (ii)(A) if the Spotify Securities or TME Securities, as applicable, are publicly traded on a national securities exchange in the United States or a non-U.S. securities exchange, the volume weighted average of the price per Spotify Security or TME Security, as applicable, for the ninety (90) trading days ending on (and including) the trading day prior to the day of the final determination of the applicable indemnification claim in accordance with this Section 7.05, as obtained from Bloomberg L.P. (or, if not reported therein, from another authoritative source) and (B) if the Spotify Securities or TME Securities, as applicable, are not so publicly traded, the per share value of the Spotify Securities or TME Securities, as applicable (the “Per Share Value”) as of the day prior to the day of the final determination of the applicable Indemnifying Party’s obligation to indemnify any Indemnified Party for any Losses pursuant to this Article VII, determined by an internationally recognized valuation firm that is independent from the Indemnifying Party and the Indemnified Party and that shall be selected by the Indemnified Party and reasonably acceptable to the Indemnifying Party (the “Expert”), which determination shall, absent manifest error, be conclusive, final, non-appealable and binding upon the Indemnifying Party and the Indemnified Party. The Indemnifying Party shall bear the fees and expenses of the Expert, and such fees and expenses shall be added to the amount of the Indemnified Party’s Losses referred to in the foregoing clause (i) for purposes of determining the number of Spotify Securities or TME Securities, as applicable, to be sold, transferred, assigned, conveyed and delivered to the Indemnified Party pursuant to this Section 7.05. The Indemnifying Party and the Indemnified Party shall provide reasonable cooperation to the Expert in determining the Per Share Value pursuant to this Section 7.05. Any sale, transfer, assignment, conveyance and delivery of any Spotify Securities or TME Securities, as applicable, under this Agreement shall be consummated promptly and in any event no later than ten (10) Business Days after the later of (x) the applicable claim for indemnification has been finally determined and (y) if applicable, the determination of the Per Share Value by the Expert. (c) Any claim, action, suit, arbitration or proceeding by or before any Governmental Body and the liability for and amount of damages therefor, shall be deemed to be “finally determined” for purposes of this Article VII when the Parties have so determined by mutual agreement or, if disputed, when a final non-appealable Order has been entered into with respect to such claim, action, suit, arbitration or proceeding.

Satisfaction of Indemnification Obligations. (a) Upon Notwithstanding any provision of this Agreement to the final determination of the Indemnifying Party’s obligation to indemnify any Indemnified Party for any Losses pursuant to this Article VII, the Indemnifying Party shall be required, at the sole and exclusive election of Spotify (if TME is the Indemnifying Party) or TME (if Spotify is the Indemnifying Party), to either contrary: (i) make any indemnification for Damages to which any Buyer Indemnified Party is entitled pursuant to Section 8.02(a)(i) with respect to Warranty Breaches, other than Damages arising from a cash payment Warranty Breach of a Seller Party Fundamental Representation or of Section 3.11, shall be satisfied solely and exclusively by offset against any Contingent Payment that is owed and has not yet been paid by Buyer to Seller (each, a “Milestone Set-Off”); and (ii) any other indemnification for Damages to which any Buyer Indemnified Party is entitled pursuant to Section 8.02(a)(i) may, at Buyer’s election, be satisfied by a Milestone Set-Off; provided in each case that any Milestone Set-Off in respect of an indemnification claim shall be subject to the applicable limitations on the rights to indemnification of the Buyer Indemnified Party (or another Person designated by Spotify or TMEParties set forth in Section 8.02(a), as applicableand provided, in its sole further, that no Milestone Set-Off shall be made against any payment of Contingent Payment that is due and absolute discretion) by wire transfer of immediately available funds or (ii)(A) if TME is owing to Seller until the Indemnifying Party, cause TME Hong Kong to sell, transfer, assign, convey and deliver to Spotify (or another Person designated by Spotify in its sole and absolute discretion) all or a portion of any Spotify Securities owned beneficially or of record by the Indemnifying Party or its controlled Affiliates in exchange and as consideration for the satisfaction of TME’s indemnification obligation Damages for such Losses and (B) if Spotify is the Indemnifying Party, cause Spotify AB to sell, transfer, assign, convey and deliver to TME (or another Person designated by TME in its sole and absolute discretion) all or a portion of any TME Securities owned beneficially or of record by the Indemnifying Party or its controlled Affiliates in exchange and as consideration for the satisfaction of Spotify’s indemnification obligation for such Losses (it being understood that the Indemnified Party claim have been finally determined. Buyer shall have the right to elect to have its Losses indemnified by a cash payment, withhold such portion of any Contingent Payment that would otherwise be payable hereunder during the sale, transfer, assignment, conveyance and delivery pendency of Spotify Securities or TME Securities, as applicable, or a combination thereofany unresolved claim for indemnification hereunder, in each casesuch amount as Buyer shall, in its reasonable discretion, determine is necessary to satisfy cover the aggregate amount of Losses that Damages subject to such claim (or if such amount is not known, Buyer’s reasonable good faith estimate thereof) until such claim is fully and finally resolved in accordance with the terms hereof. For any Milestone Set-Off in respect of an indemnification claim, once such claim is finally determined in accordance with Article 8 and the other terms of this Agreement, if the Damages determined to be payable to the Buyer Indemnified Party is entitled to be indemnified for hereunder). (b) For purposes in respect of this Section 7.05, the number of Spotify Securities or TME Securities, as applicable, to be sold, transferred, assigned, conveyed and delivered to Spotify and TME, respectively, shall be calculated by dividing (i) such claim are less than the amount of the Indemnified Party’s Losses for which it is finally determined the Indemnified Party is entitled to indemnification under Section 7.02 and with respect to which the Indemnified Party has elected to repurchase Spotify Securities or TME Securitiescorresponding Milestone Set-Off (any such difference, as applicable, from the Indemnifying Party, by (ii)(A) if the Spotify Securities or TME Securities, as applicable, are publicly traded on a national securities exchange in the United States or a nonan “Excess Milestone Set-U.S. securities exchange, the volume weighted average of the price per Spotify Security or TME Security, as applicable, for the ninety (90) trading days ending on (and including) the trading day prior to the day of the final determination of the applicable indemnification claim in accordance with this Section 7.05, as obtained from Bloomberg L.P. (or, if not reported therein, from another authoritative source) and (B) if the Spotify Securities or TME Securities, as applicable, are not so publicly traded, the per share value of the Spotify Securities or TME Securities, as applicable (the “Per Share Value”) as of the day prior to the day of the final determination of the applicable Indemnifying Party’s obligation to indemnify any Indemnified Party for any Losses pursuant to this Article VII, determined by an internationally recognized valuation firm that is independent from the Indemnifying Party and the Indemnified Party and that shall be selected by the Indemnified Party and reasonably acceptable to the Indemnifying Party (the “ExpertOff Amount”), which determination shallthen Buyer shall promptly pay the Excess Milestone Set-Off Amount to Seller plus interest accruing on such amount on a daily basis, absent manifest errorfrom and including the date such amount was withheld from the applicable Contingent Payment but excluding the date the payment is received by Seller from Buyer, be conclusive, final, non-appealable and binding upon the Indemnifying Party and the Indemnified Party. The Indemnifying Party shall bear the fees and expenses of the Expert, and such fees and expenses shall be added at a rate per annum equal to the amount of the Indemnified Party’s Losses referred to in the foregoing clause (i) for purposes of determining the number of Spotify Securities or TME Securities, then prevailing U.S. Prime Rate as applicable, to be sold, transferred, assigned, conveyed and delivered to the Indemnified Party pursuant to this Section 7.05. The Indemnifying Party and the Indemnified Party shall provide reasonable cooperation to the Expert in determining the Per Share Value pursuant to this Section 7.05. Any sale, transfer, assignment, conveyance and delivery of any Spotify Securities or TME Securities, as applicable, under this Agreement shall be consummated promptly and in any event no later than ten (10) Business Days after the later of (x) the applicable claim for indemnification has been finally determined and (y) if applicable, the determination of the Per Share Value published by the ExpertWall Street Journal plus 2%. (c) Any claim, action, suit, arbitration or proceeding by or before any Governmental Body and the liability for and amount of damages therefor, shall be deemed to be “finally determined” for purposes of this Article VII when the Parties have so determined by mutual agreement or, if disputed, when a final non-appealable Order has been entered into with respect to such claim, action, suit, arbitration or proceeding.

Satisfaction of Indemnification Obligations. (a) Upon Notwithstanding any provision of this Agreement to the final determination of the Indemnifying Party’s obligation to indemnify any Indemnified Party for any Losses pursuant to this Article VII, the Indemnifying Party shall be required, at the sole and exclusive election of Spotify (if TME is the Indemnifying Party) or TME (if Spotify is the Indemnifying Party), to either contrary: (i) make any indemnification for Damages to which any Buyer Indemnified Party is entitled pursuant to Section 8.02(a)(i) with respect to Warranty Breaches, other than Damages arising from a cash payment Warranty Breach of a Seller Party Fundamental Representation or of Section 3.11, shall be satisfied solely and exclusively by offset against any Contingent Payment that is owed and has not yet been paid by Buyer to Seller (each, a “Milestone Set-Off”); and (ii) any other indemnification for Damages to which any Buyer Indemnified Party is entitled pursuant to Section 8.02(a)(i) may, at Buyer’s election, be satisfied by a Milestone Set-Off; provided in each case that any Milestone Set-Off in respect of an indemnification claim shall be subject to the applicable limitations on the rights to indemnification of the Buyer Indemnified Party (or another Person designated by Spotify or TMEParties set forth in Section 8.02(a), as applicableand provided, in its sole further, that no Milestone Set-Off shall be made against any payment of Contingent Payment that is due and absolute discretion) by wire transfer of immediately available funds or (ii)(A) if TME is owing to Seller until the Indemnifying Party, cause TME Hong Kong to sell, transfer, assign, convey and deliver to Spotify (or another Person designated by Spotify in its sole and absolute discretion) all or a portion of any Spotify Securities owned beneficially or of record by the Indemnifying Party or its controlled Affiliates in exchange and as consideration for the satisfaction of TME’s indemnification obligation Damages for such Losses and (B) if Spotify is the Indemnifying Party, cause Spotify AB to sell, transfer, assign, convey and deliver to TME (or another Person designated by TME in its sole and absolute discretion) all or a portion of any TME Securities owned beneficially or of record by the Indemnifying Party or its controlled Affiliates in exchange and as consideration for the satisfaction of Spotify’s indemnification obligation for such Losses (it being understood that the Indemnified Party claim have been finally determined. Buyer shall have the right to elect to have its Losses indemnified by a cash payment, withhold such portion of any Contingent Payment that would otherwise be payable hereunder during the sale, transfer, assignment, conveyance and delivery pendency of Spotify Securities or TME Securities, as applicable, or a combination thereofany unresolved claim for indemnification hereunder, in each casesuch amount as Buyer shall, in its reasonable discretion, determine is necessary to satisfy cover the aggregate amount of Losses that Damages subject to such claim (or if such amount is not 51 CONFIDENTIAL TREATMENT HAS BEEN REQUESTED known, Buyer’s reasonable good faith estimate thereof) until such claim is fully and finally resolved in accordance with the terms hereof. For any Milestone Set-Off in respect of an indemnification claim, once such claim is finally determined in accordance with Article 8 and the other terms of this Agreement, if the Damages determined to be payable to the Buyer Indemnified Party is entitled to be indemnified for hereunder). (b) For purposes in respect of this Section 7.05, the number of Spotify Securities or TME Securities, as applicable, to be sold, transferred, assigned, conveyed and delivered to Spotify and TME, respectively, shall be calculated by dividing (i) such claim are less than the amount of the Indemnified Party’s Losses for which it is finally determined the Indemnified Party is entitled to indemnification under Section 7.02 and with respect to which the Indemnified Party has elected to repurchase Spotify Securities or TME Securitiescorresponding Milestone Set-Off (any such difference, as applicable, from the Indemnifying Party, by (ii)(A) if the Spotify Securities or TME Securities, as applicable, are publicly traded on a national securities exchange in the United States or a nonan “Excess Milestone Set-U.S. securities exchange, the volume weighted average of the price per Spotify Security or TME Security, as applicable, for the ninety (90) trading days ending on (and including) the trading day prior to the day of the final determination of the applicable indemnification claim in accordance with this Section 7.05, as obtained from Bloomberg L.P. (or, if not reported therein, from another authoritative source) and (B) if the Spotify Securities or TME Securities, as applicable, are not so publicly traded, the per share value of the Spotify Securities or TME Securities, as applicable (the “Per Share Value”) as of the day prior to the day of the final determination of the applicable Indemnifying Party’s obligation to indemnify any Indemnified Party for any Losses pursuant to this Article VII, determined by an internationally recognized valuation firm that is independent from the Indemnifying Party and the Indemnified Party and that shall be selected by the Indemnified Party and reasonably acceptable to the Indemnifying Party (the “ExpertOff Amount”), which determination shallthen Buyer shall promptly pay the Excess Milestone Set-Off Amount to Seller plus interest accruing on such amount on a daily basis, absent manifest errorfrom and including the date such amount was withheld from the applicable Contingent Payment but excluding the date the payment is received by Seller from Buyer, be conclusive, final, non-appealable and binding upon the Indemnifying Party and the Indemnified Party. The Indemnifying Party shall bear the fees and expenses of the Expert, and such fees and expenses shall be added at a rate per annum equal to the amount of the Indemnified Party’s Losses referred to in the foregoing clause (i) for purposes of determining the number of Spotify Securities or TME Securities, then prevailing U.S. Prime Rate as applicable, to be sold, transferred, assigned, conveyed and delivered to the Indemnified Party pursuant to this Section 7.05. The Indemnifying Party and the Indemnified Party shall provide reasonable cooperation to the Expert in determining the Per Share Value pursuant to this Section 7.05. Any sale, transfer, assignment, conveyance and delivery of any Spotify Securities or TME Securities, as applicable, under this Agreement shall be consummated promptly and in any event no later than ten (10) Business Days after the later of (x) the applicable claim for indemnification has been finally determined and (y) if applicable, the determination of the Per Share Value published by the ExpertWall Street Journal plus 2%. (c) Any claim, action, suit, arbitration or proceeding by or before any Governmental Body and the liability for and amount of damages therefor, shall be deemed to be “finally determined” for purposes of this Article VII when the Parties have so determined by mutual agreement or, if disputed, when a final non-appealable Order has been entered into with respect to such claim, action, suit, arbitration or proceeding.